CHURCH AND STATE
IN TRUMP'S AMERICA
The
Constitution says Congress has no
power to legislate restrictively about religion. By linking religion with speech,
communication ("the press"), assembly and redress, the First
Amendment creates what the Supreme Court has come to refer to as
"Expressive Association."
"Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress
of grievances."
Religious organizations have come to rely
on the powerful language of the First Amendment to assure their independence
from political authority in America.
The
prohibition against Congress making any law prohibiting "free
exercise" combined with our first Supreme Court's admonition that
"the power to tax is the power to destroy" is the basis for the tax
exemptions of churches. I wrote about this in 1998:
“Yeshua the Nazarite taught his
followers to "render unto Caesar the things which are Caesar's". He
was adroitly avoiding, as the incident in the Bible makes clear, expressing an
opinion regarding the Roman Empire's taxes. Jesus continued, "...and
render unto God the things which are God's". Ever since, the question of
the State's authority and Religion's right has been of central concern in
Western religious and legal philosophy. We have seen how this conflict has been
resolved, at present, in America. The tax (and other laws) we have discussed
are part of that resolution, for, as our first Supreme Court said, "the
power to tax is the power to destroy," and Congress has made it the law
that the government may never use this power to destroy the independence and
capacity to act of American churches. This is the Law of the Land and should be
defended by all freedom-loving and religiously oriented people.” [1]
There
have been few attempts to restrict religious speech in US history and all but
one, the infamous 1954 Johnson Amendment, have fallen away. That clause, imposed by LBJ while still a
member of Congress, attempts to prevent churches from engaging in political
speech. That is old law unlikely to be fully enforceable.
Congress
adopted the RFRA, the Religious Freedom Restoration Act of 1993 (P.L. 103-141).
In this enactment Congress determined that "governments should not
substantially burden religious exercise without compelling
justification..." and that "laws 'neutral' toward religion may burden
religious exercise..." Therefore Congress determined to protect the free
exercise of religion as follows:
"Sect. 3. Free Exercise of
Religion Protected. (a) In General. -- Government shall not substantially
burden a person's exercise of religion, even if the burden results from a rule
of general applicability, except as provided in subsection (b). (b) Exception.
-- Government may substantially burden a person's exercise of religion only if
it demonstrates that application of the burden to the person -- (1) is in the
furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest. (c)
Judicial Relief. -- A person whose religious exercise has been burdened in
violation of this section may assert that violation as a claim or defense in a
judicial proceeding and obtain appropriate relief against a government..."
Under that law the courts have allowed
churches great leeway. Examples include sponsoring peyote rituals and even
asserting exemptions from certain Obamacare insurance requirements.
Recently
people have been more strongly asserting their right to have their religious
beliefs accommodated in reference to government and employer vaccine mandates.
I’ve written about that and helped develop a form Demand for Religious Accommodation.
[2]
This
trend has been further strengthened by actions taken by the Attorney General
and President Trump. [Let it be understood that I am not a particular fan of
either, and consider their old-fashioned views regarding the health benefits of
Hemp to be particularly egregious.]
Attorney
General Jeff Sessions had this to say on October 6, 2017: [3]
“Religious liberty is not merely
a right to personal religious beliefs or even to worship in a sacred place. It
also encompasses religious observance and practice. Except in the narrowest
circumstances, no one should be forced to choose between living out his or her
faith and complying with the law.”
The
Attorney General Continues, in Point 2 of his Opinion
“2. The free exercise of religion
includes the right to act or abstain from action in accordance with one’s
religious beliefs.
“The Free Exercise Clause
protects not just the right to believe or the right to worship; it protects the
right to perform or abstain from performing certain physical acts in accordance
with one’s belief. Federal statues, including the Religious Freedom Restoration
Act of 1993 (“RFRA”), supports that protection, broadly defining the exercise
of religion to encompass all aspects of observance and practice, whether or not
central to, or required by, by a particular religious faith.” [4]
Last
May President Trump signed an Executive Order essentially nullifying the
Johnson Amendment, except for actually endorsing political candidates.
"The order, which Trump
inked during a ceremony in the White House Rose Garden, directs the IRS not to
take "adverse action" against churches and other tax-exempt religious
organizations participating in political activity that stops short of an
endorsement of a candidate for office. But pastors are already free to deliver
political speeches, and regularly do. Churches and other tax-exempt
organizations are restricted from endorsing or explicitly opposing political
candidates under the 1954 Johnson Amendment, but the executive order Trump
signed Thursday makes clear that those activities would still not be
permitted." [5]
The
wording of the Order states:
"Section 1. Policy. It shall
be the policy of the executive branch to vigorously enforce Federal law's robust
protections for religious freedom. The Founders envisioned a Nation in which
religious voices and views were integral to a vibrant public square, and in
which religious people and institutions were free to practice their faith
without fear of discrimination or retaliation by the Federal Government. For
that reason, the United States Constitution enshrines and protects the
fundamental right to religious liberty as Americans' first freedom. Federal law
protects the freedom of Americans and their organizations to exercise religion
and participate fully in civic life without undue interference by the Federal
Government. The executive branch will honor and enforce those
protections." [6]
Subsequently,
in January 2018, the President created a "Conscience and Religious Freedom
Division" in HHS:
"Social conservatives and
religious liberty leaders have anticipated conscience and religious freedom
protections to come out of HHS, and the work of the new division, which will
fall under the purview of the Office of Civil Rights, will likely pave the way
for health care workers to refuse specific types of care, like birth control or
abortion, based on their religious or conscience objections." [7]
Bottom
Line: restrictions on religious
involvement in public affairs, which IMHO always violated the absolutist
language of the First Amendment (or as Justice Hugo Black was accused of
saying, "No law means no law."), are becoming unenforceable. Similarly, the right to assert conscientious
objections to acting contrary to one's religious beliefs is becoming more
respected by the civil authorities.
This
may apply not only to conscientious objection to decorating wedding cakes, but
also to submitting to vaccination or other demands of an ever more intrusive bureaucracy.
These are highly significant developments.
Rev.
Ralph Fucetola JD
